Walker v. Hyde , 43 Idaho 625 ( 1927 )

Robert P. Hyde purchased certain timber and entered into a contract with one Moore, whereby the latter was to have charge of cutting the timber and hauling it from the woods to the railroad track. Compensation insurance premiums on Moore and his employees were to be paid by Hyde, and were so paid, including premium on Clifford S. Walker, deceased. Hyde made an independent contract with one Hodson, whereby Hodson was to furnish a truck and driver for hauling some of the logs. The driver of the truck was paid by Hyde and such payments were ultimately charged to Moore and deducted from his contract. Moore employed Clifford S. Walker and one of Walker's sons as sawyers, whose sole work and employment was to cut down trees and saw them into logs for which they received a stipulated sum per thousand feet. They were piece workers.

Walker and his son resided a distance of about one mile from the scene of their employment, and sometimes would go home for their noonday meal, and at other times lunch would be brought to them by one of Walker's children. On August 18, 1924, at which time the logging operations were in progress, Walker and his son started home for lunch, but when they had gone some distance were met by one of the children bringing their lunch. After eating and upon their way back to work they were overtaken on the road by the Hodson truck, which was returning from the railroad right of way. As the truck approached the Walkers, they stepped to the left of the road to allow it to pass. A team a little ahead caused the driver of the truck to slow down, and as he did so the elder Walker ran around behind the truck to the right side and attempted to board its front bunk. In his attempt to get on the track, Walker fell, and one of the rear wheels passed over his body causing instant death. The driver of the truck did not see Walker when he attempted to ride, and did not know that he intended so doing. It was known that the deceased had, on at least two occasions, ridden on the trucks, and others working for Moore had been known to ride on them. No orders or instructions had been given with reference to riding on the trucks, and the employer did not furnish transportation of any kind to the deceased or to his son.

The above is the substance of a stipulation of facts upon which a claim for compensation was made to the Industrial Accident Board by the wife and minor dependent children of the deceased. The board denied compensation and an appeal was taken to the district court which affirmed the decision of the board, whereupon the claimants prosecuted an appeal to this court.

The facts being stipulated and adopted as the findings of the board, upon which its ruling was based, the only question here for determination is one of law; namely, whether, under the admitted facts, the accident resulting in Walker's death arose out of and in the course of his employment. (Johnston v. A. C.White Lumber Co., 37 Idaho 617, 217 P. 979; Reck v.Whittlesberger, 181 Mich. 463, Ann. Cas. 1916C, 771, 148 N.W. 247.)

It is well settled that the burden rests upon the one claiming compensation to show by competent testimony, direct or circumstantial, not only the fact of an injury, but that it occurred in connection with the alleged employment, and that it both arose out of and in the service at which the injured party was employed. The Workmen's Compensation Act (C. S., sec. 6213 et seq.) does not provide compensation insurance for the employed workmen for accidents or injuries which may befall them other than for such accidents or injuries which arise out of and in the course of their employment.The words "out of" refer to the origin or cause of the accident, and the words "in the course of" to the time, place and circumstances under which it occurred. (Rayner v. Sligh Furniture Co., 180 Mich. 168, Ann. Cas. 1916A, 386, 146 N.W. 665, L.R.A. 1916A, 22; Hills v. Blair,182 Mich. 20, 148 N.W. 243.)

From the weight of authority, the rule would seem to be that the injury must have been sustained or death caused due to some act or condition connected with the doing of the work, or that the injury must have been sustained or death caused at or near the place at which the injured party was required to work by the terms of his employment and in the doing of the things for which he was employed. The employment of the deceased was to cut down trees and saw them into logs. His place of employment was approximately one-half mile from where he was injured. The accident occurred during the noon hour, at which time deceased had left his place of employment and his employment. No transportation was furnished or was to be furnished by the employer. If the truck had been furnished as a means of transportation, there would be no question about the right of claimants to an award. (Flynn v. Carson, 42 Idaho 141,243 P. 818.) Can it be said that the injury to deceased, when he attempted to jump on the truck, had any relation whatever to the work which he was engaged to do? Under the facts as stipulated, and applying the provisions of C. S., sec. 6217, to the facts, we are forced to the conclusion that the injury was totally foreign to the work in which deceased was engaged and did not arise out of and in the course of his employment. These two propositions must be present in order that recovery may be had. (Gale v. Krug Park Amusement Co. (Neb.), 208 N.W. 739, 46 A.L.R. 1213.)

While it is true that the Workmen's Compensation Act should be liberally construed with a view to effecting its object and to promote justice, with which rule we find ourselves in accord, nevertheless, before recovery can be had thereunder, a party seeking compensation must bring himself within the terms of the act. Each case must be determined largely upon its particular facts and the law as applied thereto; no hard-and-fast rule can be laid down as controlling. The authorities are irreconcilable, and many of them may be said to be in direct conflict. The modern tendency of the decisions, however, to the spirit of the law, is to award compensation in all cases where a liberal construction of the statute would justify it. Even in view of this liberal construction, it is not enough for the applicant to say that the accident would not have happened if he had not been engaged in the particular employment or if he had not been at the particular place. He must go further and must say that the accident arose because of something he was doing in the course of his employment and because he was exposed by the nature of his employment to some particular danger. (In re Betts,66 Ind. App. 484, 118 N.E. 551.)

Can it be said, in view of the rule above stated, that there was the slightest causal connection between the work in which the deceased was engaged and his act in attempting to get on the truck, approximately one-half mile from the place of his employment and at a time when he was not engaged in anything connected with his employment? We think it cannot be said that the injury followed as a natural incident of the work, or that it could have been contemplated as a result of any exposure occasioned by the nature of the employment. On the contrary, it was wholly foreign to it. Under the facts in this case it is not material that the accident occurred on the premises where the operations were being carried on, unless it was over a way provided by the employer, which the employee was required to travel, so that he was under the domination of the employer.

As throwing light upon the conclusion reached, attention is called to the following cases: Taylor v. Binswanger Co.,130 Va. 545, 107 S.E. 649; Hills v. Blair, supra; Morey v. City ofBattle Creek, 229 Mich. 650, 38 A.L.R. 1039, 202 N.W. 925; Kowalek v. New York Consol. R. Co., 229 N.Y. 489,128 N.E. 888; North Point Consol. Irr. Co. v. Industrial Com.,61 Utah, 421, 214 P. 22; California Highway Com. v. IndustrialAcc. Com., 61 Cal. App. 284, 214 P. 658; London Guarantee Acc. Co. v. Industrial Acc. Com., 190 Cal. 587, 213 P. 977;Haas v. Kansas City Light Power Co., 109 Kan. 197,198 P. 174; London Lancashire G. A. Co. v. Industrial Acc.Com., 173 Cal. 642, 161 P. 2; Kent v. Virginia-CarolinaChemical Co., 143 Va. 62, 129 S.E. 330; Gale v. Krug ParkAmusement Co., supra; Boatright v. Georgia Casualty Co. (Tex.Civ.App.), 277 S.W. 802; Diaz v. Warren Bros. Co.,95 Conn. 287, 111 A. 206.

From what has been said, it follows that the judgment must be affirmed, and it is so ordered; costs awarded to respondents.

Wm. E. Lee, C. J., and Taylor, J., concur.